National Labor Relations Board v. Robinson

• Decision Date: 07 January 1958
• Docket Number: No. 12928.,12928.
• Citation: 251 F.2d 639
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Jack C. ROBINSON, d/b/a Robinson Freight Lines, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

251 F.2d 639 (1958)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Jack C. ROBINSON, d/b/a Robinson Freight Lines, Respondent.

No. 12928.

United States Court of Appeals Sixth Circuit.

January 7, 1958.

Fannie M. Boyls, Washington, D. C., Theophil C. Kammholz, Marcel Mallet-Prevost, and Ruth V. Reel, Washington, D. C., on the brief, for petitioner.

Thomas W. Thomson, Knoxville, Tenn., Creekmore, Buhl & Thomson, Knoxville, Tenn., on the brief, for respondent.

Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.

PER CURIAM.

Petitioner prays for enforcement of its decision and order finding that respondent violated Section 8(a) (1) and (3) of the National Labor Relations Act, 29 U.S.C.A. § 158(1, 3), and ordering that respondent reinstate five employees without loss of pay or seniority rights and make whole two other employees for loss of pay.

Respondent operates a motor transportation business in Tennessee under franchise from the Public Utilities Commission of that state. Respondent does not cross state lines but moves freight across Tennessee for interstate haulers as a link in interstate commerce. During the period involved Local 621 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (AFL) operated under a collective bargaining contract with respondent. No previous history of hostility toward the union was shown. In July, 1954, the union and respondent disagreed as to the interpretation of the bargaining contract under which respondent had laid off two employees. The controversy was handled as a grievance but, while grievance proceedings were carried out on both sides, the matter was deadlocked. Early in October, 1954, the union struck respondent's operation in Knoxville, Tennessee, in order to compel respondent to accept its interpretation of the contract. The strike lasted only seven hours, as a state court enjoined the strike. The strike was renewed on October 18, the injunction being dissolved, and was abandoned on December 10, 1954.

Early in the second strike some of the employees requested respondent's local manager to come to the home of one of the strikers for the purpose of lending the strikers some money. Six strikers were present and respondent's manager loaned each of them $20, repaid later by payroll deductions. Respondent then sent the strikers a letter notifying them that they had been temporarily replaced and that, unless they reported for work by Monday November 15, they would be permanently replaced.¹

The trial examiner found that the letter was a violation of Section 8 (a) (1) and that the loaning of the money violated the same section. The Board, we think rightly, disagreed with these conclusions. The letter was in no sense a violation of the statute. It simply stated respondent's legal position, that it was entitled to make employment replacements to take over the positions of the strikers. Cf. National Labor Relations Board v. Mackay Radio & Telegraph Company, 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381. As to the loan, since the proposition to borrow the money was made by the strikers themselves, since no hostility to the union on the part of respondent had been shown and loans had previously been made by respondent to employees when they were in financial difficulties, the finding of the Board on this point is sustained upon the evidence considered as a whole.

The Board however, found that the refusal to reinstate certain employees who applied for employment when the strike was abandoned was a violation of Section 8(a) (3) and 8(a) (1) of the Act. This decision was correct.

This was an economic strike in which respondent was entitled to hire permanent replacements and was compelled to reinstate only so many strikers as there were vacant places to be filled at the termination of the strike. National Labor Relations Board v. Mackay Radio & Telegraph Company, supra, 304 U.S. 345, 58 S.Ct. 910. Cf. Hamilton v. National Labor Relations Board, 6 Cir., 160 F.2d 465, certiorari denied 332 U.S. 762, 68 S.Ct. 65, 92 L.Ed. 348.

When the strike terminated only nine strikers had been reemployed and seven vacancies still existed. Seven strikers applied for work with respondent between December 13 and December 15, 1954. As shown by the record, new men were employed by respondent to fill all of the vacancies subsequent to application of the strikers for reinstatement. The strikers were presented with application blanks which all refused to sign. Respondent contends therefore that it was not compelled to reinstate them. It asserts that the applications were presented to the men because the Interstate Commerce Commission some six months previously had instructed respondent to secure written applications for employment. However, respondent admitted that previously it...